Citation Nr: 20037595 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 15-06 736 DATE: June 2, 2020 ORDER A total disability rating based on individual unemployability (TDIU) prior to April 6, 2012 is denied. FINDING OF FACT Prior to April 6, 2012, the Veteran’s service-connected disabilities met the schedular criteria for a TDIU rating, but the preponderance of the evidence of record did not support a finding that his service-connected disability was of such nature and severity as to preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU prior to April 6, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969. His awards and decorations include Vietnam Service Medal with two Bronze Stars, and the Combat Infantryman Badge. In June 2018, the Board remanded this case for additional development. In April 2020, the Regional Office (RO) granted entitlement to a TDIU with an effective date of April 6, 2012, which the RO identified as the day following the Veteran’s last date of work. 1. Entitlement to a TDIU prior to April 6, 2012. Generally, the effective date of an award based on an original claim, a claim reopened after a final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to this rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. See 38 C.F.R. § 3.400(o)(2). In that regard, the law provides that the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred (not necessarily the date of receipt of the evidence) if application is received within one year from such date. Id. A TDIU claim qualifies as a claim for increased disability compensation. The United States Court of Appeals for Veterans Claims (Court) determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. As previously noted, the Veteran was awarded entitlement to a TDIU and assigned an effective date and April 6, 2012, based on a finding that this was the earliest date that he met the schedular criteria for TDIU based on the award of a 70 percent rating for PTSD and the evidence showed that PTSD rendered him unemployable. See April 2020 rating decision. From October 9, 2007 through April 6, 2012, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated 70 percent. As such, the schedular criteria for a TDIU have been met. The Veteran’s DD-214 shows that he has a GED. The Veteran submitted a VA Form 21-8940 in October 2012, where he reported that he had been employed as a healthcare technician until April 2012. The Veteran indicated he was unable to work because of his service-connected PTSD. The Veteran’s private treatment records show that he was evaluated initially for PTSD in October 2007. In January 2008, he reported that his PTSD symptoms included frequent intrusive thoughts, nightmares, flashbacks, severe distress at exposure to triggers that reminded him of past trauma, anhedonia, estrangement, detachment from others, restricted affect, severe sleep disturbance, frequent irritability, angry outbursts, severe concentration and memory problems, hypervigilance, auditory and visual hallucinations, occasional suicidal ideation, and an exaggerated startle response. On January 2008 VA examination, the Veteran reported that his PTSD symptoms included anxiety, nightmares, chronic sleep impairment, decreased appetite, difficulty concentrating, intrusive thoughts, anger, hypervigilance, and social isolation. He also reported that he worked full time, but that he did miss one or two days a month. In June 2008 the Veteran submitted a correspondence in which he reported that his treating psychiatrist found that PTSD caused “major impairment.” On March 2011 VA examination, the Veteran reported that his PTSD symptoms included social isolation, chronic sleep impairment, nightmares, fatigue, flashbacks, and hypervigilance. He reported that he felt tired and drained, but that he had learned to cope with it and push through, as he needed his job. The Veteran reported that he was employed and that he did not contend any unemployment was due to PTSD effects. The VA examiner concluded that the Veteran was significantly impacted by PTSD and depressive symptoms, as he reports very little social interaction outside of work. The VA examiner found that that the Veteran’s PTSD resulted in reduced reliability and productivity due to PTSD symptoms. In February 2012, the Veteran submitted a private medical opinion in which the private physician reported that the Veteran was experiencing increased sleep disturbances, nightmares, intrusive memories, and social isolation. The Veteran has been shown to have been employed throughout the appeal period, until April 6, 2012. In March 2013, the Veteran’s employer submitted a VA Form 21-4192 reporting that the Veteran was “out sick” from April 6, 2012 and did not submit any physician’s documentation; after the Veteran did not return after 12 weeks, the position was terminated. Based on the foregoing evidence, the Board finds that a TDIU prior to April 6, 2012 is not warranted. Despite the severity of the Veteran’s symptoms during the appeal period, it is not shown that his PTSD resulted in an inability to secure or follow a substantially gainful occupation. Moreover, the Veteran reported during the January 2008 and March 2011 VA examinations that he worked full time, although he missed a day or two per month, and he did not contend any unemployment was due to PTSD effects. The March 2011 VA examiner found that the Veteran’s PTSD resulted in reduced reliability and productivity. The Veteran’s private psychiatric clinicians did not contend that the Veteran was unemployable due to his PTSD until after the relevant period on appeal. See May 2019 private medical opinion. The evidence is clear that PTSD has affected the Veteran’s occupational functioning during the appeal period. Nevertheless, the sole fact that a claimant struggles with employability is not enough to substantiate a TDIU claim. A 70 percent rating assigned during the relevant appeal period is recognition that the Veteran has been impaired, to include occupationally. Regarding a TDIU, the ultimate question is whether, despite the occupational impairment, the Veteran was capable of performing the physical and mental acts required by employment during the period between February 2008 and October 2012. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence demonstrates that he was. Accordingly, the preponderance of the evidence does not show that the Veteran’s service-connected disability, PTSD, was of such nature and severity as to preclude him from securing and following a substantially gainful occupation prior to April 6, 2012. As such, entitlement to a TDIU prior to April 6, 2012 is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.